Freedom of speech rides on

By David Marr

September 29, 2011 — 12.00am

The Federal Court ruling against Andrew Bolt amounts to an attack on poor journalism, not on journalism itself.

FREEDOM of speech is not at stake here. Judge Mordecai Bromberg is not telling the press what we can say or where we can poke our noses. He's attacking lousy journalism. He's saying that if the Herald Sun's Andrew Bolt wants to accuse people of appalling motives, he should start by getting his facts right.

Illustration: Robin Coucher.

Bolt was wrong. Spectacularly wrong. In two famous columns in 2009 he took a swipe at "political" or "professional" or "official" Aborigines who could pass for white but chose to identify as black for personal or for political gain, to win prizes and places reserved for real, black Aborigines and to borrow "other people's glories".

But Bolt's lawyers had to concede even before this case began in the Federal Court that nine of these named "white Aborigines" had identified as black from childhood. All nine proceeded to court to say they didn't make the choice down the track, but were raised as Aborigines. Their evidence was not contested by Bolt or his paper.

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So, as we say in this trade: no story.

Yet Bolt went at it with mockery, derision and sarcasm. They are Judge Bromberg's words. He added: "I accept that the language utilised in the newspaper articles was inflammatory and provocative."

Here's Bolt on Larissa Behrendt: "She's won many positions and honours as an Aborigine, including the David Unaipon Award for Indigenous Writers, and is often interviewed demanding special rights for 'my people'. But which people are 'yours', exactly, mein liebchen? And isn't it bizarre to demand laws to give you more rights as a white Aborigine than your own white dad?"

Among the problems here are that Behrendt's father was a black Australian, not a white German. And like all the others, Behrendt was raised black. Judge Bromberg wrote: "She denies Mr Bolt's suggestion that she chose to be Aboriginal and says that she never had a choice, she has always been Aboriginal and has 'identified as Aboriginal since before I can remember'." Bolt didn't contest her evidence.

The nine chose not to sue. They did not want damages but a public correction and a promise not to print such stuff again. So they brought an action under the Racial Discrimination Act, which has embedded in it a strong freedom-of-speech defence: insulting or humiliating people because of their race or colour is not unlawful when it is done "reasonably and in good faith" in pursuit of a matter of public interest.

The act left Bolt with the task of making a list of convincing denials to explain his mistakes, his language and his motives. Denials are one of Bolt's great talents: with a smile on his face and hand on his heart he is happy to claim the purest motives even in the unhappiest circumstances. Usually it works like a charm. Not with Judge Bromberg. Brushed aside was Bolt's claim that he was not really writing about race at all. The judge found: "Race, colour and ethnicity were vital elements of the message and therefore a motivating reason for conveying the message, even if the message is to be characterised as ultimately about choice of racial identity."

Also brushed aside was the claim that any offence caused was unintended. "Mr Bolt is an experienced journalist," said Judge Bromberg. "He has high level communication skills. His writing displays a capacity to cleverly craft language to intimate a message. I consider it highly unlikely that in carefully crafting the words utilised by him in the newspaper articles, he did not have an understanding of the meaning likely to be conveyed by those words to the ordinary, reasonable reader."

Rather tartly, the judge observed that the more reliable guide to Bolt's motives came not from his evidence, but his writings. The man on the bench seemed not too impressed by the journalist in the box. "Having observed Mr Bolt, I formed the view that he was prone to after-the-fact rationalisations of his conduct." Nor was Judge Bromberg bowled over by Bolt's efforts as a reporter. He taxed Bolt with errors in the genealogy of the nine - some of them "gross errors" - and in describing their upbringing always at white hands.

"Mr Bolt presented evidence of having undertaken some online research about the individuals," said the judge. "But it was not evidence upon which I could be satisfied that a diligent attempt had been made to make reasonable inquiries."

Judge Bromberg was perhaps most scathing about Bolt's failure to acknowledge that any of the nine had been raised black. "In my view, Mr Bolt was intent on arguing a case," said the judge. "He sought to do so persuasively. It would have been highly inconvenient to the case for which Mr Bolt was arguing for him to have set out facts demonstrating that the individuals whom he wrote about had been raised with an Aboriginal identity and enculturated as Aboriginal people.

"Those facts would have substantially undermined both the assertion that the individuals had made a choice to identify as Aboriginal and that they were not sufficiently Aboriginal to be genuinely so identifying. The way in which the newspaper articles emphasised the non-Aboriginal ancestry of each person serves to confirm my view. That view is further confirmed by factual errors made which served to belittle the Aboriginal connection of a number of the individuals dealt with, in circumstances where Mr Bolt failed to provide a satisfactory explanation for the error in question."

So Bolt and the Herald and Weekly Times went down. Standing outside the court, Bolt declared this "a terrible day for free speech in this country". Not according to the judge: "The intrusion into freedom of expression is of no greater magnitude than that which would have been imposed by the law of defamation if the conduct in question and its impact upon the reputations of many of the identified individuals had been tested against its compliance with that law."

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Perhaps the Herald Sun and Bolt should be thanking their lucky stars not to be facing nine separate defamation trials. An appeal is expected, so is some spectacular rhetoric from the now martyred Andrew Bolt.